Disputing a ticket - frustration of contract?

Snakes_Belly

There will be examples of rebuttal letters in the newbies. What you need to do is to make it specific to your own scenario so that it does not look like a template letter. Same with the defence. 

Deny that you owe them anything.

Defence points 

Signage insufficient to form a contract. Random signage distracting and large in comparison to Excel's small sign. Driving in from dual carriageway.

Ask for landowner contract.

Fake add on.

Mitigating circumstances.

Not sure about the 16 minutes. There have been circumstances when 20 minutes have been allowed. 10 mins at the start and 10 mins at the end. I am not sure in what circumstances that is allowed but it has been.

I am not legally trained. Like yourself I am a person who has been caught out by this company and been through the process but I am not familiar with every scenario.

A strong rebuttal letter could see off a claim however I doubt it will in this case so I would treat it as a mock for your defence.
  

Vanadesse

Snakes_Belly said:

https://www.google.com/maps/place/Buzz+Bingo+and+The+Slots+Room+Ashton/@53.4905532,-2.0978176,3a,75y,350.2h,87.27t/data=!3m6!1e1!3m4!1st4jr8B_GwqvwMhOhUAdyQQ!2e0!7i13312!8i6656!4m8!1m2!2m1!1sashton+retail+park!3m4!1s0x487bb65078d0db6d:0x3da2a9d8a36fae!8m2!3d53.4912548!4d-2.0984399

Found a google map from 2017. The signage at the entry is not sufficient to form a contract in my opinion. I don't know what others will think.  There is also quite a lot of distraction from other random signage which makes it difficult to process at the best of times when driving especially when driving in heavy rain. You are also entering the car park from a very busy road. I would have missed that Excel sign on entry.

You could not stop on the A6043 so you did the only thing that you could.    

There is a case about processing information where there is a lot of random signage. It is not a parking ticket case but it is relevant to this scenario.  

The formation of the contract on entry can be robustly defended in my opinion. The case that Excel will cite is totally irrelevant to this scenario.

Not sure about the 16 minutes, There have been cases dismissed when motorists have exceeded by this amount of time. There will be regulars who can advise on this. 

Can I just ask, on what basis do you say that the signage isn't sufficient? Any particular points about it that I should raise beyond the distraction?

Snakes_Belly

Can I just ask, on what basis do you say that the signage isn't sufficient? Any particular points about it that I should raise beyond the distraction?

Excel will say that by entering the car park that you are entering into a contract with them and agreeing to their terms and conditions. The signage at the entry to the car park is what forms the contract. It can only do this if it is prominent.

In the Beavis case the signage was prominent. The signage on the 2017 Google map looks quite tiny and easily missed. The other random signage is large and distracting. I doubt very much whether I would have seen that sign in pouring rain. Would an average person driving in from a dual carriageway in heavy rain see that sign? I don't think so.   

In their witness statement they will cite a case that relates to a barrier car park at which the driver stops and see the signage. That is so different from your scenario.

They will have also added on £60.00 for debt collection fees. Much has been written on this forum about these fees and you should find plenty of information on how to treat the £60.00 fake add on.

   

Snakes_Belly

I would also question why it has taken them so long to bring this claim.

Redx

Your case is very similar to my son's a few years earlier

In your appeal and their reply I don't see that you queried the landowner contract , which is going to be crucial to the case , especially if it NEVER changed with Tiger properties since 2013 until ECP took over

I already told you that you probably won't get a copy , even a redacted copy , until a few weeks before the hearing , so in several months time !!

Yes you can and should ask for a copy in your LBC reply , definitely , but don't be surprised if they refuse or ignore the request , it's more like a poker game

I doubt that the signage changed either , especially with the allegations so far , same scenario as my son's , so probably the same signs and contract , giving the first hour free in the contract yet only 30 minutes on the signs , so definitely something to bring up in court

So yes , ask for copies , but expect a refusal , so tailor your defence and witness statement plus exhibits to cover these anomalies and put the claimant to strict proof by full disclosure , if a court claim arrives

Snakes_Belly

You could mention as well the legal point that Fruitcake made citing the case.

Vanadesse

Are you ready for a really, really long response?  I've laid it all out in as much detail, with as much legal backing as I can. If anyone has any further advice based on this or further points before I submit this, please let me know. Also, if I need to delete this to protect myself, please let me know but I can't see any issue with sharing it.

I am emailing today in relation to the letter of claim received from DCB Legal on behalf of Excel Parking. Please disregard previous emails as I will expand further upon those within this communication explaining why although it is admitted that I am the registered keeper and driver of the vehicle at the time in question, the liability is denied. I will also be making a complaint about the predatory conduct of Excel Parking and BW Legal to your client landowner.

Before laying out the reasons why I deny any liability to the reported debt, I must first request the data relating to myself that I am entitled to under data protection laws. As minimum, I must insist on the production of:
-          ALL photos taken
-          All letters and emails sent and received, both to and from myself and internally, including any appeal correspondence
-          All data held, all evidence that you will rely upon and a full copy of the PCN and NTK

As well as the above documentation, I must also request a copy of the contract between Excel Parking and the landowner at the time of issue of this charge to ensure that Excel are acting within the authority that was given to them at the time. The Pre-Action Protocol states that you should provide this information so I request that you do so in a timely manner.

The first thing that I must make you aware of is that this letter that you have provided as part of the pre-action protocol for debt claims is factually incorrect. It states that the Parking Charge Notice XL10445000 was received on 03/08/2016, it was in fact issued on 08/03/2016. Please ensure that all communication from yourselves is factually correct. 

The situation behind the alleged debt was that on the afternoon of 8th March 2016, I entered Ashton Retail Park due to the malfunction of my windscreen wipers just outside during an extremely heavy downpour. Manoeuvring into the car park was extremely difficult to do without wipers to ensure a clear view. I could not legally or safely stop on the A6043 and so I did the only thing that I could do, which was to enter to Ashton Retail Park and stop in the safest way possible, ensuring not only the safety of myself and my sleeping 10-month-old baby who was in the car with me but the surrounding motorists and pedestrians. An appeal was raised with Excel Parking on these grounds, with evidence given in relation to the visit from RAC to attend my vehicle to repair my wipers, which has again been submitted with this response.

My appeal was refused on grounds that I do not find acceptable and I must insist that I am not liable for this debt on the following grounds:

1.       The signage on entry to Ashton Retail Park was insufficient to form a contract. There were a number of random signage that were distracting and large in comparison to Excel Parking’s small sign, where time could not be taken to see these clearly whilst driving in from a dual carriageway, nor could they be seen or read clearly during heavy rain.

2.       Whilst in their response to an IAS appeal Excel Parking claimed that my attending to my car malfunction constituted as parking, however I must bring your attention to the appeal court case of (Laura) Jopson v Homeguard (Services). The Shorter Oxford Dictionary defines parking as “To leave a vehicle in a carpark or other reserved space” and “To leave in a suitable place until required”, a definition also stated within this case where Judge Harris QC found that the concept of parking, as opposed to stopping, is “that of leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it, and perhaps coping with some vicissitude of short duration, such as changing a wheel in the event of a puncture.” Within this judgement, Judge Harris QC’s findings clearly state that attending to a small vicissitude such as a flat tyre is not parking. It is clear that attending to failed windscreen wipers during heavy rain, during a time in which I did not leave my car nor switch my engine off constitutes as a small vicissitude. On this basis, I cannot be considered as parked and therefore am not liable to the charge stipulated within the PCN or any further correspondence.

3.       Within my appeal, Excel Parking claimed that had I telephoned the helpline and explained the situation then my free period would have been extended. Again, I refer you to the case of Jopson v Homeguard, where within the judge’s findings it is stated that Homeguard Services made similar statements to the defendant but that the notice said nothing about exemption being granted upon request, and that the reference to “all enquired relating to parking in this area should be directed to 14 services” was insufficient in the Judge Harris’ judgement, as an indication that there was scope for periodic exemptions on request. Both your entry sign and tariff sign state that a valid pay & display ticket must be purchase for a stay longer than 30 minutes, advising only that drivers contact the helpline in case of machine failure. Therefore, this can be directly compared to the finding as in this case.

4.       Reference has also previously been made to the case of ParkingEye v Beavis by Excel Parking. However, the factual circumstances of this situation are quite different to those in this case and therefore the findings are irrelevant to this reported debt and any future legal claim that you may pursue.

5.       No contract that gives Excel Parking authority to issue charges on their behalf has been provided at any stage and as such, I cannot ascertain whether Excel Parking indeed had any authority to issue such a charge or that they acted within the boundaries of any contract that may have been in place. This contacted has been requested to ascertain the details and whether Excel Parking have indeed acted within the authority given to them as it has been brought to my attention that the free time period dictated by the Excel Parking signage may not match the contract between themselves and the landowner, therefore indicating that Excel Parking may be acting outside of their authority, a point in which previous POPLA appeals have been granted at this site.

6.       I deny liability for this charge based on frustration of contract. The basis of this claim/charge is that a contract was formed between Excel Parking and the driver, in which I was granted the consideration of free parking for 30 minutes, in return for a promise to leave within the 30 minutes unless further payment was made. Even if I did enter into contract with Excel Parking and the landowner, reasons why I believe this not to be the case are stated above, this contract must be declared as frustrated on the basis of my breakdown and inability to leave the car park within the time expected.

Frustration will occur when:
-          An unforeseen event occurs after a contract is entered into which is outside the control of the parties and makes the contract either:
o   Physically or commercially impossible or illegal to perform; or
o   Transforms performance of the contract into something so radically different from the intended purpose that it would be unfair to hold the parties to their obligations 

The unforeseen delay to the attending breakdown mechanic, who should have been with me within 10 minutes as he was sent straight away, was outside of the control of both parties. Having no cash on me to pay for parking, even if I had realised the free time has expired, meant that the only physically possible option would have been for me to leave the car park with malfunctioning wiper blades during heavy rain. Given that fully functioning wiper blades are required for a car to pass an MOT, my car at that moment in time could not be deemed as roadworthy and therefore I could not fulfil my legal requirements as a driver and the driving of the car in that condition would have meant that driving the car to leave the car park would have been illegal. Please see Fibrosa Spolka v Fairbairn as precedent of where the contract becoming illegal to perform it will frustrate the contract.

7.       It is also denied that the exaggerated sum of £160 that is being sought is receoverable. It is my position that the sought amount of £160, which as you state is the PCN and debt recovery costs, is a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135.  Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper.  At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable.  ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event.

I state, as clearly as I can, that any purported debt and liability is denied and shall not be settled on the grounds stated above. I have been dealing with this now for over 5 years. The constant harassment and threats that have occurred as a result of this incident is unacceptable and causing great distress to my family and I refer you to Section 10 of the Data Protection Act, although I appreciate that this is the first correspondence from yourselves, it follows an extremely intrusive level of contact from BW Legal, who when told similar to this suddenly stopped contact until your letter 4 years later. Any attempt to pursue this matter to court will be vigorously defended and the prospect of issuing a counterclaim for misuse of personal data may be considered. Your client had no reasonable cause to continue to process my data once they became aware of the circumstances. 

I have been told that there is no time frame for response but it's likely to be weeks. Given the time that this has already been going on for, I would appreciate someone dealing with this as a matter of urgency.

Regards,

Redx

Hi , seems ok to me and this could also be used as the basis of your witness statement if it got to Manchester court ( a graveyard for parking company claims )

The date issue can be caused due to using the USA system of recording , because several ways exist for these matters , like 9/11 for example

As for employment , you would put dates into your DQ when not available , leaving dates such as half term , rest days and annual leave available for example , so its just a case of red lining schooldays , to obtain a suitable date during the week when you are free for a phone call or video call

Vanadesse

Redx said:

Hi , seems ok to me and this could also be used as the basis of your witness statement if it got to Manchester court ( a graveyard for parking company claims )

The date issue can be caused due to using the USA system of recording , because several ways exist for these matters , like 9/11 for example

As for employment , you would put dates into your DQ when not available , leaving dates such as half term , rest days and annual leave available for example , so its just a case of red lining schooldays , to obtain a suitable date during the week when you are free for a phone call or video call

Yeah I figured it would be the starting point for any court statement. I didn’t realise I could state when available so that’s helpful to know, makes me less reluctant to take this to court if needed. 

Redx

Vanadesse said:

Redx said:

Hi , seems ok to me and this could also be used as the basis of your witness statement if it got to Manchester court ( a graveyard for parking company claims )

The date issue can be caused due to using the USA system of recording , because several ways exist for these matters , like 9/11 for example

As for employment , you would put dates into your DQ when not available , leaving dates such as half term , rest days and annual leave available for example , so its just a case of red lining schooldays , to obtain a suitable date during the week when you are free for a phone call or video call

Yeah I figured it would be the starting point for any court statement. I didn’t realise I could state when available so that’s helpful to know, makes me less reluctant to take this to court if needed. 

Then read the Bargepole guide on what happens and when , also check the MCOL website for information , look at the n180 DQ submission form by downloading it and reading it , checking where you can show unavailable dates , or availability

Read some other recent threads where the defence stage plus the dq stage have already happened , like the recent Stockport case for example , which has a hearing date so is at the WS plus Exhibits stage at the moment ( so well past the defence and DQ stage )

The newbies FAQ sticky thread near the top of the forum in announcements has plenty of examples and advice , especially post 2